by Matt Barr

Distant early warning

The Supreme Court agreed to hear a challenge to Texas' gerrymandered Congressional districts yesterday. As with many thorny questions of the day, the result of the case is going to depend on Mr. Justice Kennedy. In this case, he will impose new requirements on legislative redistricting, which will have the force of the supreme law of the land. Whether you're for, against or ambivalent about gerrymandering -- I'm against -- this should be extremely troubling to you.

The Constitution requires that Congressional districts be redrawn to reflect any changes in the size of a state's delegation after each decennial census. Federal law requires that these districts be "composed of contiguous territory" and that each elect only one Member, and the Supreme Court ("one person, one vote") requires them to be as close to equal in population as possible. When districts are alleged to have been drawn to protect incumbents from election defeat and to give candidates from a given party an easier time in contested districts, the Court has traditionally refused to intervene.

The current leading case on the matter is Vieth v. Jubelirer. There, four Justices -- you'll guess which right away -- wanted to scrap a Republican gerrymander of Pennsylvania's Congressional districts. Four -- likewise -- said (to reduce a complicated issue to a broad generality) the Court lacked the standards and expertise needed to resolve a districting dispute. This is called the "political question" doctrine. Among other, rarer circumstances, courts should decline to intervene, the doctrine says, where there is "a textually demonstrable constitutional commitment of the issue to a coordinate political department" or "a lack of judicially discoverable and manageable standards for resolving" a dispute. A plurality of the Court said the latter is true of gerrymandering.

It could have said the former was, too. Mr. Justice Scalia noted in his opinion for the plurality that Article 1, Section 4 of the Constitution empowers Congress to "make or alter" state Congressional districts if it chooses, and cites and quotes material tending to prove this provision was included specifically to give the people a remedy for what was then not yet called gerrymandering.

Mr. Justice Kennedy, agreeing that there were no discoverable or manageable standards to guide the Court in the Pennsylvania case, held out hope that he could conjure some up in a future case, so declined to join the plurality, while voting to stay out of the Keystone State's affairs.

Chief Justice Roberts and Judge Alito are likely to both be seated when the case is up for vote, and they are both replacing members of the four-Justice plurality that called gerrymandering a political question. So between now and then, Kennedy will have to figure out how he would like to see every state in the union conduct its Congressional elections. If he comes up with something he likes, he'll vote with the other Justices to implement a rule about redistrciting that will have the force of a constitutional provision. I think it's certain that he will, whether he's totally happy with his plan or not; gerrymandering is unlikely to come before the Court again until after districts are redrawn from the next census.

(Kennedy, we recall, is an impatient person. He cast the deciding vote outlawing capital punishment for offenders who committed their crimes as 16 or 17 year olds on the basis that laws in the states were trending that way anyway; he likewise struck down Texas' sodomy law at least partially on the basis that in 17 years the number of states outlawing sodomy had halved. It is when the democratic process is working its best and toward a result Kennedy favors that he hastens to end it. He stands athwart history yelling, "hurry up!")

Reflect on this for a bit. You may think the Court should prohibit gerrymandered Congressional districts. It already prohibits racial gerrymandering. You may on the other hand recall that Massachusetts Governor Elbridge Gerry drew some of his state's districts to resemble salamanders in 1812, introducing us to the term for this we use today, and that districts were being rigged the way Gerry did since the early 1700s (Patrick Henry was alleged to have tried to draw a district so as to keep James Madison out of the first Congress), and conclude that the world hasn't spun off its axis so far so the Court should stay out of it. You can be inclined either way, but consider:

In 2006 the Supreme Court is going to announce that whatever Mr. Justice Kennedy and his clerks come up with between now and then is the supreme law of the land on legislative redistricting, ending 300 years of elected officials being in charge of drawing districts in America.

You don't know what Kennedy and his clerks will decide this supreme law is. You don't know if you'll like it or hate it till you hear it. All you know is that it's going to happen. So ask yourself now: Is this democracy? Article V of the Constitution says this:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

Does that describe what Kennedy and his clerks are going to do? When do the states get to vote whether to ratify his and his clerks' plan?

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